An issue that is surfacing with increasing frequency in criminal cases is whether a given portion of a statute constitutes an element of an offense or, instead, is a sentencing provision. The answer determines whether the factual determinations for which the provision calls are to be made by the fact-finder or the sentencer, and whether the reasonable doubt standard of proof must be applied. [67 U.S.L.W. 3289, Vol. 67, No. 16 (Nov. 3, 1998).]

This appeal presents such a question. The case concerns the constitutionality of one provision of New Jersey's hate crime laws. With certain exceptions, the provision allows enhanced sentencing in any case in which "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N.J.S.A. 2C:44-3(e). (For convenience we may sometimes refer to such a purpose as a "biased purpose.") The constitutional question is whether a jury must find that purpose to have existed beyond a reasonable doubt before a court may impose an extended sentence for a hate crime. We find that the provision has been narrowly tailored to meet First Amendment concerns, and represents a legislative attempt to comply with a constitutional mandate, not a legislative attempt to circumvent due process rights to trial by jury. We affirm the judgment of the Appellate Division upholding defendant's extended sentence for a bias crime.

I.

Early on the morning of December 22, 1994, police arrested defendant at his home in Vineland for the shooting of a neighbors' home. The neighbors were a black family living in an all-white neighborhood. This was the fourth time that the neighbors' home had been fired upon. On September 24, 1994, a single bullet pierced their window, and twice in November 1994, bullets struck the exterior of the home. After the December 22 shooting, one of the neighbors recognized defendant's grey Chevrolet truck driving away. The police were called.

The police arrived approximately twenty minutes later and arrested defendant at his home. Acting on a later-acquired search warrant, police found various weapons at defendant's home, including a .22-caliber rifle, with laser sights and a silencer attached, and an anti-personnel bomb. During the police questioning, defendant admitted that he had fired four or five rifle shots into the home. Defendant gave a later statement in which he admitted that although "he does not know the . . . victims or the family, but because they are black in color he does not want them in the neighborhood. . . ." He said that he was "just giving them a message that they were in his neighborhood."

A Cumberland County grand jury returned a twenty-two-count indictment against defendant. It included charges of possession of a firearm for an unlawful purpose, possession of a prohibited weapon, attempted murder, attempted aggravated assault, harassment, and possession of a destructive device.

Defendant negotiated a plea agreement under which he pled guilty to three of the counts. Two counts included the second-degree crimes of possessing a firearm for an unlawful purpose on September 24 and December 22, 1994. The third involved unlawful possession of a prohibited weapon, an anti-personnel bomb. Under the terms of the plea, any sentence imposed on the prohibited weapon count was to be concurrent with the sentences to be imposed on the two unlawful purpose counts. The plea agreement left the determination of the sentence on these two counts to the discretion of the court. In addition, the State reserved the right to make an application under the hate crimes law for imposition of an extended sentence on one count of the indictment. Possession of a weapon for an unlawful purpose is a second-degree crime for which the ordinary term is between five and ten years. If approved, an extended term on one of those counts exposed Apprendi to a maximum penalty of twenty years' imprisonment with ten years of parole ineligibility. When the weapon possessed is a firearm, the Graves Act requires the imposition of a minimum term of imprisonment of at least one-third of the sentence imposed or three years, whichever is greater. N.J.S.A. 2C:43-6(c). As part of his plea agreement, Apprendi reserved the right to contest the constitutionality of N.J.S.A. 2C:44-3(e), the hate-crime sentence enhancer.

At a hearing prior to sentencing, defendant offered the testimony of a psychologist who had evaluated defendant's mental state in order to establish the motive underlying the crimes. The witness shed light on certain psychological abnormalities of defendant. His condition did not rise to a level sufficient to establish a diminished capacity or insanity defense under N.J.S.A. 2C:4-1. The psychologist diagnosed defendant as having an obsessive-compulsive disorder, a cyclothymic disorder (a type of temperament alternating moods of elation and depression), kleptomania (a tendency to steal), drug dependence, and alcohol abuse. Additionally, the psychologist concluded that although the defendant knew that he was discharging the weapon toward the house and that it was wrong to do so, "his judgment and impulse control were substantially impaired at the time of the accident." Following that hearing, the State moved on September 5, 1995 for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(e). After consideration of the testimony taken at the hearing, the trial court rejected the psychological defense, and concluded that defendant's actions were the product of racial bias thereby satisfying the statute. The court sentenced Apprendi on one of the unlawful-purpose counts to an extended term of twelve years' imprisonment with four years of parole ineligibility. Because this was Apprendi's first offense, the court made the lesser sentences on the other counts concurrent with the extended term. Other fines and penalties were imposed.

On appeal, Apprendi charged that he had been sentenced under an unconstitutionally vague law in that it permitted a court to sentence defendant to an extended term of imprisonment on so vague a basis as that the crime had been committed "at least in part with ill will, hatred or bias toward the victim." He further argued that the statute unconstitutionally allows imposition of an extended term of imprisonment based on proof of the biased purpose by a preponderance of the evidence rather than proof found by a jury beyond a reasonable doubt. A majority of the Appellate Division dismissed the vagueness challenge because in 1995, before the date of Apprendi's sentence, the Legislature had already deleted the words, "at least in part with ill will, hatred or bias toward the victim." 304 N.J. Super. 147, 152 (App. Div. 1997).

The 1995 amendment excising the words was in response to this Court's decision in State v. Mortimer, 135 N.J. 517, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994), holding that the same language in N.J.S.A. 2C:33-4(d) (a provision of our hate-crime laws addressing harassment), was unconstitutionally vague. The Appellate Division majority found that the use of the preponderance of the evidence standard to mandate an extended term did not violate the constitutional requirement that the State must prove each element of a crime beyond a reasonable doubt. 304 N.J. Super. at 153. The panel found that the Legislature had not made racial bias an element of the crime charged because the provision was included in a section of the Criminal Code entitled "authority of court in sentencing." Ibid. The majority reasoned that "[a]s to sentencing factors which are not elements of a crime, the State's burden of proof is not subject to the reasonable doubt standard." Ibid. It compared this sentencing provision to that of Graves Act sentencing under which the State need not prove beyond a reasonable doubt that the actor possessed a firearm during the commission of a crime as a predicate to the imposition of a Graves Act sentence of mandatory parole ineligibility. Id. at 155. One Judge Dissented. She found that the federal and State constitutions require that a jury decide each element of a crime beyond a reasonable doubt and that the "purpose to intimidate . . . because of race, [or] color" is an element of the crime when that purpose raises the sentence for the crime. . . . The State's power to define away the elements of the crime cannot extend, as the majority holds, to defining away the actor's culpable purpose [when it served to enhance his sentencing.] [Id. at 162.]

Defendant appealed as of right under Rule 2:2-1(a)(2) on the basis of the Dissent below.

II.

A.

In order to understand this case, it is necessary to understand its background. On May 13, 1991, Steven Vawter and David Kerns spray-painted a Nazi swastika and words that seemed to spell "Hitler rules," on a synagogue in Rumson, New Jersey. On the same day, they spray-painted a satanic legend on the driveway of a nearby Roman Catholic church. The police charged Vawter and Kerns with violations of sections 10 and 11 of New Jersey's hate crime statute. N.J.S.A. 2C:33-10 and -11 forbade assaultive intimidation by the use of hateful symbols such as a swastika and the placement of such symbols on places of religious worship.

On August 23, 1991, David Mortimer and two juveniles spray-painted hate-filled words on the garage door of a Pakistani family's home in East Brunswick, New Jersey. Police charged Mortimer with two counts of ethnic harassment under N.J.S.A. 2C:33-4(d), which forbade harassment by offensive communications and made the offense a fourth-degree crime if one acted in part with ill will, hatred or bias and with a purpose to intimidate because of race, color, religion, sexual orientation or gender. These two 1991 cases, Vawter and Mortimer, were the first major challenges to New Jersey's hate crime laws. State v. Vawter, 136 N.J. 56 (1994); State v. Mortimer, 135 N.J. 517 (1994), cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).

States began to enact laws to counter the evil of hate crimes in the 1980s.

"Today nearly every state, using varied approaches, has enacted legislation to punish acts of bias-motivated crime. Some states created new crimes of bias-motivated violence or intimidation. Others created new crimes that consist of the bias-motivated commission of a crime that already exists in [a] statute. Other states provided for enhanced penalties where commission of a crime was motivated by bias, or chose to treat the actor's bias motivation as an aggravating circumstance in sentencing." [Camilla Nelson, Hate Crime on the Internet, 1997 SPG NAAG Civ. Rts. Update 1, 2 (1997).]

New Jersey was one of the first states to adopt an anti-hate crime law, L. 1981, c. 282. In generic terms, the 1981 law outlawed the burning of crosses or placing of swastikas on public or private property with a purpose to terrorize others by threats of violence (Section 10) and outlawed the placing of such graffiti on houses of worship or cemeteries (Section 11).

In 1990, the Legislature expanded the coverage of our hate crime laws by enacting the "Ethnic Intimidation Act," L. 1990, c. 87. That law (1) made the disorderly persons offense of simple assault a crime of the fourth degree if the actor had a biased purpose in selecting the victim, N.J.S.A. 2C:12-1e; (2) made the petty disorderly persons offense of harassment a crime of the fourth degree if the actor had a biased purpose in selecting the victim, N.J.S.A. 2C:33-4d; and (3) added a provision allowing an extended term of imprisonment for other crimes of the first, second or third degree, N.J.S.A. 2C:44-3(e).

For convenience, we refer in this opinion to the several provisions of our hate-crime statute as Section 4d, Sections 10 and 11, Section 12e, and Section 44-3(e).

In signing the legislation, Governor Florio stated:

"From now on, the law in New Jersey will be intolerant of ethnic intimidation. Those who commit these crimes of hate are going to face additional charges. From now on, hate crimes will be serious crimes, whether it's a phone call in the middle of the night or vandalism that leaves hateful symbols in its wake or racial slurs." [Wisam Ali, Florio extends term for 'crimes of hate', Home News, Aug. 10, 1990.]

That law was similar to a model hate crime statute recommended by the Anti-Defamation League of B'nai B'rith (ADL). The model was "intended to assist state and local governments which would like to enact hate crime laws." Terry A. Maroney, The Struggle Against Hate Crime: Movement at a Crossroads, 73 N.Y.U.L. Rev. 564, 589 (1998). The ADL recommended that there be "a separate substantive crime for institutional vandalism, [and a] penalty enhancement for crimes motivated by certain biases." Id. at 589-90. The model statute provides, in pertinent part, "that a person is guilty of intimidation when he or she violates specified pre-existing criminal laws . . . by reason of the actual or perceived race, color, religion, national origin, or sexual orientation of the victim." Id. at 589 n.146.

B.

While Vawter and Mortimer were pending, two other cases were working their way through the courts of other states. In one case, white teenagers had burned a cross on the fenced-in yard of a black family in St. Paul, Minnesota. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). Convicted under St. Paul's hate crime ordinance, the youths appealed to the United States Supreme Court. In R.A.V., supra, 505 U.S. at 384-85, 112 S. Ct. at 2543-44, 120 L. Ed. 2d at 318-19, the Supreme Court held that when a state regulates unprotected expression (fighting words), it cannot discriminate on the basis of content or viewpoint. Under that rationale, a state may prohibit the expression of fighting words (threats, harassment, etc. . .) but if a state attempts to prohibit only those fighting words that contain racist hate speech, the regulation will be subject to strict scrutiny and may be found to be under-inclusive.

States breathed a collective "sigh of relief" when some of the constitutional concerns regarding hate crime statutes were alleviated by the Court's decision one term later in Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993). George G. Size & Glenn R. Britten, Is There Hate Speech?: R.A.V. and Mitchell in the Context of First Amendment Jurisprudence, 21 Ohio N.U.L. Rev. 913, 913 (1995). In that case a group of black youths, including Mitchell, pointed out a white boy on the street, beat him until he was unconscious, and then stole his tennis shoes. Mitchell, supra, 508 U.S. at 480, 113 S. Ct. at 2196-97, 124 L. Ed. 2d at 442. The Supreme Court in Mitchell, supra, held that the First Amendment does not prohibit a state from providing enhanced punishment for a crime based on the actor's discriminatory purpose in committing the crime. Id. at 486, 113 S. Ct. at 2200, 124 L. Ed. 2d at 445-46 (citing Dawson v. Delaware, 503 U.S. 159, 165, 112 S. Ct. 1093, 1097, 117 L. Ed. 2d 309, 317 (1992)). Whereas the invalidated St. Paul ordinance in R.A.V. was expressly directed at expression, Mitchell explained that "[the sentence enhancer] in this case is aimed at conduct unprotected by the First Amendment." Id. at 487, 113 S. Ct. at 2201, 124 L. Ed. 2d at 447.

It is not perfectly clear however, in what sense the hate crime sentence enhancer upheld in Mitchell was directed at conduct, whereas the St. Paul ordinance struck down in R.A.V. was directed at speech. Alan E. Brownstein, Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests, 29 U.C. Davis L. Rev. 553, 560 (1996). Both ordinances appeared to have been "directed at bias-motivated behavior." Id. at 560. A more cynical view may be that the Supreme Court "shrugged off" without making a "full retreat" from the position that it had taken in R.A.V.. Robert R. Riggs, Punishing the Politically Incorrect Offender Through "Bias Motive" Enhancements: Compelling Necessity or First Amendment Folly?, 21 Ohio N.U.L. Rev. 945, 950 (1995). "Ultimately, stare decisis leaves . . . no alternative but to follow the complex footsteps of Vawter and R.A.V.." Lorri R. Forter, The Role of Precedent in Hate Crime Decisions, 5 Temp. Pol. & Civ. Rights L. Rev. 243, 253 (1996).

C.

Consistent with the principles of the two cases, our Court has struck down the features of the New Jersey hate-crime law that fall within the pattern of R.A.V. as being directed at speech or expression. Conversely, our Court has upheld the features of the law that fall within the pattern of Wisconsin v. Mitchell as being penalty-enhancers.

In Vawter, Vawter and Kerns had been charged under Sections 10 and 11 of the 1981 law. The Court found that those Sections represented content-based restrictions that were unconstitutional because they punished only threats or displays of graffiti expressive of certain beliefs, not all threats. Vawter, supra, 136 N.J. at 75. The Court concluded that in adopting those sections, the Legislature was "obviously expressing its disagreement with the message conveyed by the conduct that the statutes regulate." Id. at 68. The Court "reluctantly" based its decision on the Supreme Court's decision in R.A.V., supra. Id. at 70. In his separate opinion in Vawter, Justice Stein perceived the flawed logic of R.A.V.'s "underbreadth" analysis. Id. at 98 (Stein J., Concurring). He viewed Sections 10 and 11 as step-by-step legitimate responses to "the most virulent and dangerous formulation of bias-motivated incitements to violence." Ibid.

Mortimer, on the other hand, had been charged with one count of harassment under N.J.S.A. 2C:33-4d. Distinguishing the harassment provisions in Section 4d from those in Sections 10 and 11, the Court dismissed Mortimer's First Amendment challenge. Justice Clifford explained that the St. Paul ordinance "prohibited the expression of hate," while Section 4d "increases the level of the crime only when a person acts on his or her beliefs and selects the victim with a purpose to intimidate because of one of the specified circumstances -- race, color, religion, sexual orientation, or ethnicity. . . .[Thus,] Section 4 proscribes only the harassing conduct itself." Mortimer, supra, 135 N.J. at 528. The Court concluded that the statutory language, "at least in part with ill will, hatred or bias toward the victim," was unconstitutionally vague because it failed "to communicate with sufficient clarity what the statute prohibits." Id. at 533. In order to avoid the vagueness problem and thus construe the statute constitutionally, the Court excised the vague language from subsection d. Id. at 534. Following the decision in Mortimer, the Legislature amended N.J.S.A. 2C:33-4d and N.J.S.A. 2C:44-3(e) to excise the vague language.

Although it is true that in Wisconsin v. Mitchell, the jury found that the defendant had intentionally selected his victim based on race, nothing in Mitchell or Mortimer alerted the Legislature to the concern that the penalty-enhancing provisions of its hate crime law would be unconstitutional because a Judge, not a jury, found the biased purpose to intimidate by a preponderance of the evidence. The question is --when does due process require jury findings beyond a reasonable doubt.

III.

A.

The Due Process Clause of the Fourteenth Amendment requires that the essential elements of a crime be proven beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). There is, however, no litmus test or unerring "constitutional calculus" for determining what is an essential element of a crime. N.J.S.A. 2C:1-14(h) defines an element of an offense as:

"(1)such conduct or (2)such attendant circumstances or (3)such a result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense; (b) establishes the required kind of culpability; (c) negatives an excuse or justification for such conduct; (d) negatives a defense under the statute of limitations; (e) establishes jurisdiction or venue."

These definitions do not explicitly cover Section 44-3(e).

Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S. Ct. 1881, 1892, 44 L. Ed. 2d 508, 522 (1975), held that under a Maine statute that defined the offense of first-degree murder in terms of the absence of heat of passion, due process required the State to bear the burden on that fact. Martin v. Ohio, 480 U.S. 228, 234, 107 S. Ct. 1098, 1102, 94 L. Ed. 2d 267, 274-75 (1987), upheld a law imposing on a defendant the burden of proof of self-defense because the same evidence will often negate the State's case even if insufficient to prove self-defense by a preponderance of the evidence. In Patterson v. New York, 432 U.S. 197, 220-21, 97 S. Ct. 2319, 232, 53 L. Ed. 2d 281, 298 (1977), because New York established the penalty for second-degree manslaughter on the basis of mitigation premised upon a finding of 'extreme emotional disturbance,' the Court permitted New York to impose on the defendant the burden of proving that factor. McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), upheld a Pennsylvania statute that contained a sentencing factor -- "visible possession of a firearm" -- the presence of which required the Judge to impose a minimum prison term of five years. The Court held that the Constitution did not require Pennsylvania to treat the factor as an element of the crime. Id. at 91, 106 S. Ct. at 2419, 91 L. Ed. 2d at 79. In so holding, the McMillan Court said that the State's "link[ing] the 'severity of punishment' to 'the presence or absence of an identified fact'" did not automatically make that fact an "element." Id. at 84, 106 S. Ct. at 2415, 91 L. Ed. 2d at 294 (quoting Patterson, supra, 432 U.S. at 214, 97 S. Ct. at 2329, 53 L. Ed. 2d at 294). Citing Patterson, the Supreme Court said that "the state legislature's definition of the elements of the offense is usually dispositive." Id. at 85, 106 S. Ct. at 2415, 91 L. Ed. 2d at 75. It said that it would not "define precisely the constitutional limits" of a legislature's power to define the elements of an offense. Id. at 86, 106 S. Ct. at 2416, 91 L. Ed. 2d at 76. Finally, the Supreme Court held that, whatever those limits might be, the State had not exceeded them. Ibid.

The primary concern of the Supreme Court in this series of cases has been whether "states would circumvent due process by redefining the essential elements of guilt as affirmative defenses or as sentencing factors." State v. Krantz, 788 P.2d 298, 304 (1990) (emphasis added), cert. denied., 498 U.S. 938, 11 S. Ct. 341, 112 L. Ed. 2d 306 (1990). Because the Supreme Court has declined to "define precisely the constitutional limits" on the states' ability to define elements of an offense, McMillan, supra, 477 U.S. at 86, 106 S. Ct. at 2416, 91 L. Ed. 2d at 76, we must attempt to determine what those limits are.

B.

We begin by stating the obvious. Merely because the Legislature has placed the hate-crimes enhancer within the sentencing provisions of the Code of Criminal Justice does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense. Were that the case, the Legislature could just as easily allow Judges, not juries, to determine if a kidnaping victim has been released unharmed. See State v. Federico, 103 N.J. 169 (1986) (requiring State, in order to establish first-degree kidnaping offense, to prove beyond a reasonable doubt that victim was not released unharmed).*fn1

Second, the constitutional question may not be avoided by characterizing a biased "purpose to intimidate" as a "motive". Of course it is true that motive is not an essential element of a crime. But in ordinary circumstances proof of motive does not increase the penal consequences to an actor. Whether one kills out of jealousy or for pecuniary gain does not increase the non-capital sentence for the crime. Whether one steals to put bread on a table or to feed a drug habit does not increase the sentence for theft. A finding under Section 2C:44-3(e) of a "motive" to intimidate because of the victim's race or ethnicity has vastly different consequences than in regular criminal proceedings. Labels do not afford an acceptable answer. Indeed, the exclusion of the words "at least in part with ill will, hatred or bias toward the victim" limits our ability to view this finding as merely a search for motive. We must search for firmer principles of decision.

Our existing precedent does not control the Disposition of this case. Although Mortimer, supra, assumed in the prosecution of a Section 4 harassment offense that evidence of a biased purpose would be "introduce[d] . . . at trial" as part of the "required state of mind or mens rea" under the statute, 135 N.J. at 531, 534, the Court did not address the Section 43 sentence enhancer. Similarly, State v. Camacho, 153 N.J. 54, 56-57 (1998), posed the question for resolution in the case as "whether intent to use a firearm against the person, as opposed to the property, of another is an element" of possession of a weapon for an unlawful purpose entitling a defendant to a jury trial on that issue or was instead a sentencing factor for the court. Camacho did not explore the underlying question of the constitutional limits on allocating sentencing factors to a Judge or jury.

C.

Any Disposition that we make is necessarily tentative in the sense that the final word on this subject will have to come from the United States Supreme Court. The recently enacted amendments to the federal sentencing guidelines now include a hate crime penalty enhancement provision that applies to all federal crimes. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. N. 103-322, § 280003 (1994), 108 Stat. 2096; 28 U.S.C.A. § 994. Effective ...

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